CHAPTER V.

OF THE LAWS OF ENGLAND SINCE HER FIRST INHABITATION.

[1577, Book III., Chapter 3; 1587, Book II., Chapter 9.]

That Samothes (or Dis) gave the first laws to the Celts (whose kingdom he erected about the fifteenth of Nimbrote), the testimony of Berosus is proof sufficient. For he not only affirmeth him to publish the same in the fourth of Ninus, but also addeth thereto how there lived none in his days of more excellent wisdom nor politic invention than he, whereof he was named Samothes, as some other do affirm. What his laws were, it is now altogether unknown, as most things of this age, but that they were altered again at the coming of Albion no man can absolutely deny, sith new lords use commonly to give new laws, and conquerors abolish such as were in use before them.

The like also may be affirmed of our Brute, notwithstanding that the certain knowledge, so well of the one as of the other, is perished, and nothing worthy memory left of all their doings. Somewhat yet we have of Mulmutius, who not only subdued such princes as reigned in this land, but also brought the realm to good order that long before had been torn with civil discord. But where his laws are to be found, and which they be from other men's, no man living in these days is able to determine.

Certes there was never prince in Britain of whom his subjects conceived better hope in the beginning than of Bladudus, and yet I read of none that made so ridiculous an end. In like sort there hath not reigned any monarch in this isle whose ways were more feared at the first than those of Dunwallon (King Henry the First excepted), and yet in the end he proved such a prince as after his death there was in manner no subject that did not lament his funeral. And this only for his policy in governance, severe administration of justice, and provident framing of his laws and constitutions for the government of his subjects. His people also, coveting to continue his name unto posterity, entitled those his ordinances according to their maker, calling them by the name of the "Laws of Mulmutius," which endured in execution among the Britons so long as our _homelings_ had the dominion of this isle. Afterwards, when the _comeling_ Saxons had once obtained the superiority of the kingdom, the majesty of those laws fell for a time into such decay that although "_Non penitus cecidit, tamen potuit cecidisse videri_," as Leland saith; and the decrees themselves had utterly perished indeed at the very first brunt had they not been preserved in Wales, where they remained amongst the relics of the Britons, and not only until the coming of the Normans, but even until the time of Edward the First, who, obtaining the sovereignty of that portion, endeavoured very earnestly to extinguish those of Mulmutius and to establish his own.

But as the Saxons at their first arrival did what they could to abolish the British laws, so in process of time they yielded a little to relent, and not so much to abhor and mislike of the laws of Mulmutius as to receive and embrace the same, especially at such time as the said Saxon princes entered into amity with the British nobility, and after that began to join in matrimony with the British ladies, as the British barons did with the Saxon _frowes_, both by an especial statute and decree, whereof in another treatise I have made mention at large. Hereof also it came to pass in the end that they were contented to make a choice and insert no small numbers of them into their own volumes, as may be gathered by those of Athelbert the Great, surnamed King of Kent, Inas and Alfred, kings of the West Saxons, and divers other yet extant to be seen. Such also was the lateward estimation of them, that when any of the Saxon princes went about to make new ordinances they caused those of Mulmutius (which Gildas sometime translated into Latin) to be first expounded unto them; and in this perusal, if they found any there already framed that might serve their turn, they forthwith revived the same and annexed them to their own.

But in this dealing the diligence of Alfred is most of all to be commended, who not only chose out the best, but gathered together all such whatsoever the said Mulmutius had made: and then, to the end they should lie no more in corners as forlorn books and unknown to the learned of his kingdom, he caused them to be turned into the Saxon tongue, wherein they continued long after his decease.

As for the Normans, who for a season neither regarded the British nor cared for the Saxon statutes, they also at the first utterly misliked of them, till at the last, when they had well weighed that one kind of regiment is not convenient for all peoples (and that no stranger, being in a foreign country newly brought under obedience, could make such equal ordinances as he might thereby govern his new commonwealth without some care and trouble), they fell in with such a desire to see by what rule the state of the land was governed in the time of the Saxons that, having perused the same, they not only commended their manner of regiment, but also admitted a great part of their laws (now current under the name of "St. Edward's Laws," and used as principles and grounds), whereby they not only qualified the rigour of their own, and mitigated their almost intolerable burden of servitude which they had lately laid upon the shoulders of the English, but also left us a great number of the old Mulmutian laws, whereof the most part are in use to this day, as I said, albeit that we know not certainly how to distinguish them from others that are in strength amongst us.

After Dunwallon, the next lawgiver was Martia, whom Leland surnameth _Proba_, and after him John Bale also, who in his _Centuries_ doth justly confess himself to have been holpen by the said Leland, as I myself do likewise for many things contained in this treatise. She was wife unto Gutteline, king of the Britons, and being made protectrix of the realm after her husband's decease in the nonage of her son, and seeing many things daily to grow up among her people worthy reformation, she devised sundry and those very politic laws for the governance of her kingdom, which her subjects, when she was dead and gone, did name the "Martian Statutes." Who turned them into Latin as yet I do not read, howbeit (as I said before of the laws of Mulmutius) so the same Alfred caused those of this excellently well-learned lady (whom divers commend also for her great knowledge in the Greek tongue) to be turned into his own language, whereupon it came to pass that they were daily executed among his subjects, afterwards allowed of (among the rest) by the Normans, and finally remain in use in these our days, notwithstanding that we cannot dissever them also very readily from the other.

The seventh alteration of laws was practised by the Saxons; for I overpass the use of the civil ordinances used in Rome, finally brought hither by the Romans, and yet in perfect notice among the civilians of our country, though never generally received by all the several regions of this island. Certes there are great numbers of these latter, which yet remain in sound knowledge, and are to be read, being comprehended for the most part under the names of the Martian and the Saxon law. Beside these also, I read of the Dane law, so that the people of middle England were ruled by the first, the West Saxons by the second, as Essex, Norfolk, Suffolk, Cambridgeshire, and part of Hertfordshire were by the third, of all the rest the most unequal and intolerable. And as in these days whatsoever the prince in public assembly commanded upon the necessity of his subjects or his own voluntary authority was counted for law, so none of them had appointed any certain place whereunto his people might repair at fixed times for justice, but caused them to resort commonly to their palaces, where, in proper person, they would often determine their causes, and so make shortest work, or else commit the same to the hearing of other, and so despatch them away. Neither had they any house appointed to assemble in for the making of their ordinances, as we have now at Westminster. Wherefore Edmund gave laws at London and Lincoln, Ethelred at Habam, Alfred at Woodstock and Wannetting, Athelstane in Excester, Crecklade, Feversham, and Thundersley, Canutus at Winchester, etc.: other in other places, whereof this may suffice.[98]

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Hitherto also (as I think) sufficiently of such laws as were in use before the Conquest. Now it resteth that I should declare the order of those that have been made and received since the coming of the Normans, referred to the eighth alteration or change of our manner of governance, and thereunto do produce threescore and four several courts. But for as much as I am no lawyer, and therefore have but little skill to proceed in the same accordingly, it shall suffice to set down some general discourses of such as are used in our days, and so much as I have gathered by report and common hearsay.

We have therefore in England sundry laws, and first of all the civil, used in the chancery, admiralty, and divers other courts, in some of which the severe rigour of justice is often so mitigated by conscience that divers things are thereby made easy and tolerable which otherwise would appear to be mere injury and extremity.

We have also a great part of the Canon law daily practised among us, especially in cases of tithes, contracts of matrimony, and such like, as are usually to be seen in the consistories of our bishops and higher courts of the two archbishops, where the exercise of the same is very hotly followed.

The third sort of laws that we have are our own, and those always so variable and subject to alteration and change that oft in one age divers judgments do pass upon one manner of case, whereby the saying of the poet--

"_Tempora mutantur, et nos mutamur in illis_,"

may very well be applied unto such as, being urged with these words, "_In such a year of the prince this opinion was taken for sound law_," do answer nothing else but that "_the judgment of our lawyers is now altered, so that they say far otherwise_."

The regiment that we have therefore after our own ordinances dependeth upon three laws, to wit, Statute Law, Common Law, Customary Law and Prescription, according to the triple manner of our trials and judgments, which is by Parliament, verdict of twelve men at an assize, or wager of battle, of which the last is little used in our days, as no appeal doth hold in the first and last rehearsed. But to return to my purpose.

The first is delivered unto us by Parliament, which court (being for the most part holden at Westminster, near London) is the highest of all other, and consisteth of three several sorts of people, that is to say, the nobility, clergy, and commons of this realm, and thereto is not summoned but upon urgent occasion when the prince doth see his time, and that by several writs, dated commonly full six weeks before it begin to be holden. Such laws as are agreed upon in the higher house by the lords spiritual and temporal, and in the lower house by the commons and body of the realm (whereof the convocation of the clergy, holden in Paul's, or, if occasion so require, in Westminster Church, is a member), there speaking by the mouth of the knights of the shire and burgesses, remain in the end to be confirmed by the prince, who commonly resorteth thither of custom upon the first and last days of this court, there to understand what is done and give his royal consent to such statutes as him liketh of. Coming therefore thither into the higher house, and having taken his throne, the speaker of the parliament (for one is always appointed to between the houses, as an indifferent mouth for both) readeth openly the matters there determined by the said three estates, and then craveth the prince's consent and final confirmation of the same. The king, having heard the sum and principal points of each statute briefly recited unto him, answereth in French with great deliberation unto such as he liketh "IL NOUS PLAIST," but to the rest, "IL NE PLAIST," whereby the latter are made void and frustrate. That also which his majesty liketh of is hereby authorised, confirmed, and ever after holden for law, except it be repealed in any like assembly. The number of the commons assembled in the lower house beside the clergy consisteth of ninety knights. For each shire of England hath two gentlemen or knights of greatest wisdom and reputation, chosen out of the body of the same for that only purpose, saving that for Wales one only is supposed sufficient in every county, whereby the number aforementioned is made up. There are likewise forty and six citizens, two hundred and eighty-nine burgesses, and fourteen barons, so that the whole assembly of the laity of the lower house consisteth of four hundred thirty and nine persons, if the just number be supplied. Of the laws here made likewise some are penal and restrain the common law, and some again are found to enlarge the same. The one sort of these also are for the most part taken strictly according to the letter, the other more largely and beneficially after their intendment and meaning.

The Common Law standeth upon sundry maxims or principles and years or terms, which do contain such cases as (by great study and solemn argument of the judges, sound practice confirmed by long experience, fetched even from the course of most ancient laws made far before the Conquest, and thereto the deepest reach and foundations of reason) are ruled and adjudged for law. Certes these cases are otherwise called _pleas_ or _action_, whereof there are two sorts, the one criminal and the other